Case 5:09-cv-01864-PSG-SS Document 1765-1 Filed 10/10/12 ...CASE NO. ED CV 09-01864 PSG (SSx)...

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IGNACIA S. MORENOAssistant Attorney GeneralEnvironment and Natural Resources DivisionUnited States Department of JusticeBRADLEY R. O'BRIEN (CA State Bar #189425)Environmental Enforcement SectionEnvironment and Natural Resources DivisionUnited States Department of Justice301 Howard Street, Suite 1050San Francisco, California 94105Telephone: (415) 744-6484Facsimile: (415) 744-6476brad. obri ennae,usdoj . gov

Attorneys for Plaintiff, UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA — WESTERN DIVISION

CITY OF COLTON, a Californiamunicipal corporation,

Plaintiff,

v.

AMERICAN PROMOTIONALEVENTS, INC., et al.

Defendants.

AND CONSOLIDATED ACTIONS

CASE NO. ED CV 09-01864 PSG (SSx)

[Consolidated with Case Nos. CV 09-6630 PSG (SSx), CV 09-06632 PSG(SSx), CV 09-07501 PSG SSx , CV 09-07508 PSG (SSx), CV 10- 24 SG(SSx) and CV OS-01479 PSG (SSx)]

CONSENT DECREE

CONSENT DECREE

Case 5:09-cv-01864-PSG-SS Document 1765-1 Filed 10/10/12 of 62 Page ID #:147714

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TABLE OF CONTENTS

I. BACKGROUND ...................................................................................................... - 1 -

II. JURISDICTION .......................................................................................................- 2 -

III. PARTIES BOUND ...................................................................................................- 2 -

IV. DEFINITIONS ..........................................................................................................- 3 -

V. STATEMENT OF PURPOSE ..................................................................................- 9 -

VI. SETTLEMENT OF RESPONSE COSTS ................................................................- 9 -

VII. FAILURE TO COMPLY WITH PAYMENT OBLIGATIONS ............................- 13 -

VIII. COVENANTS BY PLAINTIFFS ...........................................................................- 15

IX. RESERVATION OF RIGHTS BY PLAINTIFFS .................................................- 20 -

X. COVENANTS BY SETTLING DEFENDANTS AND

RESERVATION OF RIGHTS ......................................................................- 24 -

XI. EFFECT OF SETTLEMENT/CONTRIBUTION ..................................................- 28 -

XII. ACCESS .................................................................................................................- 30 -

XIII. CERTIFICATION ..................................................................................................- 31 -

XIV. NOTICES AND SUBMISSIONS ..........................................................................- 33 -

XV. RETENTION OF JURISDICTION ........................................................................- 36 -

XVI. INTEGRATION/APPENDICES ............................................................................- 36 -

XVII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT ..........................- 37 -

XVIII. TERMINATION .....................................................................................................- 37 -

XIX. FINAL JUDGMENT ..............................................................................................- 38

CONSENT DECREE


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I. BACKGROUND

A. The United States of America ("United States"), on behalf of the

Administrator of the United States Environmental Protection Agency ("EPA"),

filed a complaint in this matter pursuant to Sections 107 of the Comprehensive

Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C.

§ 9607 ("CERCLA"), and Section 7003 of the Resource Conservation and

Recovery Act ("RCRA"), 42 U.S.C. § 6973, seeking injunctive relief and

reimbursement of response costs incurred by EPA and the United States

Department of Justice for response actions at the B.F. Goodrich Superfund Site in

Rialto, California.

B. The Local Government Entities (as defined in Section IV (Definitions)) filed

complaints in this matter pursuant to Sections 107 and 113 of CERCLA, 42 U.S.C.

§§ 9607 and 9613, and/or state law seeking injunctive relief, declaratory relief,

reimbursement of response costs and other damages. Rialto also filed claims

pursuant to Section 7002 of RCRA, 42 U.S.C. § 6972, against certain parties.

C. Defendants Pyro Spectaculars, Inc.; Astro Pyrotechnics, Inc.; Trojan

Fireworks Company; Thomas O. Peters; The 1996 Thomas O. Peters and Kathleen

S. Peters Revocable Trust; and Stonehurst Site LLC (collectively, "Settling

Defendants" as defined in Section IV (Definitions)), are entities which are named

as defendants in one or more of the complaints referenced in the foregoing

paragraphs. The Settling Defendants do not admit, and specifically deny: (1) any

liability arising out of the transactions or occurrences alleged in the claims or

deemed by the Court in the Consolidated Federal Action; and (2) that the release or

threatened release of Waste Material at or from the B.F. Goodrich Site or the

RABSP (as defined in Section IV (Definitions)) constitutes, contributed to or

caused an imminent or substantial endangerment to the public health or welfare or

~ the environment. The Local Government Entities, the County Related Parties, and

CONSENT DECREE

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the Federal Defendants also do not admit, and specifically deny, any liability

arising out of the transactions or occurrences alleged in the claims or deemed by

~ the Court in the Consolidated Federal Action.

D. The United States has requested and reviewed Financial Information and

Insurance Information from Pyro Spectaculars, Inc. and Insurance Information

from Astro to determine whether they are financially able to pay response costs

incurred and to be incurred in connection with the B.F. Goodrich Site. Based upon

such Financial Information and Insurance Information, the United States has

determined that Pyro Spectaculars, Inc. and Astro are able to pay no more than the

amounts specified in Section VI (Settlement of Response Costs) of this Consent

Decree.

NOW, THEREFORE, it is hereby ORDERED, ADJUDGED and DECREED:

II. JURISDICTION

1. This Court has jurisdiction over the subject matter of this action

pursuant to 28 U.S.C. §§ 1331 and 1345;.42 U.S.C. §§ 6973(a), 9607, and 9613(b);

and also has personal jurisdiction over Settling Defendants. Solely for the

purposes of this Consent Decree and the underlying complaints, Settling

Defendants waive all objections and defenses that they may have to jurisdiction of

the Court or to venue in this District. Settling Defendants shall not challenge entry

or the terms of this Consent Decree or this Court's jurisdiction to enter and enforce

this Consent Decree.

III. PARTIES BOUND

2. This Consent Decree is binding upon the United States, the Local

Government Entities, the County Related Parties, and upon Settling Defendants

and their heirs, successors and assigns. Any change in ownership or corporate or

other legal status, including, but not limited to, any transfer of assets or real or

CONSENT DECREE

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personal property, shall in no way alter the status or responsibilities of Settling

Defendants under this Consent Decree.

IV. DEFINITIONS

3. Unless otherwise expressly provided in this Consent Decree, terms

used in this Consent Decree that are defined in CERCLA or in regulations

promulgated under CERCLA shall have the meaning assigned to them in CERC

or in such regulations. Whenever terms listed below are used in this Consent

Decree or in any appendix attached hereto, the following definitions shall apply:

"160-Acre Area" shall mean the area located in San Bernardino County that

is bounded by West Casa Grande Drive on the north, Locust Avenue on the east,

Alder Avenue on the west, and an extension of Summit Avenue on the south. The

160-Acre Area is depicted generally on the map included in Appendix A.

"2010 Record of Decision" or "2010 ROD" shall mean the EPA Record of

Decision relating to the Source Area Operable Unit at the B.F. Goodrich Site

signed on September 30, 2010, by the Regional Administrator, EPA Region 9, or

his/her delegate, and all attachments thereto.

"2010 ROD Response Costs" shall mean: (1) all costs, including but not

limited to, direct and indirect costs, in connection with the B.F. Goodrich Site that

the United States incurred before the signing of the 2010 Record of Decision; (2)

all costs, including but not limited to direct and indirect costs that the United States

incurred or will incur after the 2010 Record of Decision to perform or oversee the

work required to implement the 2010 Record of Decision; and (3) costs that were

otherwise identified and sought by the United States in the Consolidated Federal

Action.

"Astro" shall mean Astro Pyrotechnics, Inc. and includes past and current

officers and employees acting in the course and scope of their employment,

CONSENT DECREE

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successors, and assigns. Astro also includes Astro Pyrotechnics, a California

corporation (Corp. Reg. No. C0720080) formed on August 9, 1974 and dissolved

on September 17, 1990.

"Astro Insurance Information" shall mean those insurance documents

identified in Appendix B.

"Basin Contaminants" shall mean any type of perchlorate; trichloroethylene

("TCE"); perchloroethylene; carbon tetrachloride; chloroform; or methylene

chloride; including any breakdown or "daughter" products of the foregoing.

"B.F. Goodrich Site" shall mean the B.F. Goodrich Superfund Site in San

Bernardino County, California, which includes the 160-Acre Area and all areas

where contamination from the 160-Acre Area otherwise comes to be located.

"B.F. Goodrich Special Account" shall mean the special account, within the

'EPA Hazardous Substances Superfund, established for the B.F. Goodrich Site by

EPA pursuant to Section 122(b)(3) of CERCLA, 42 U.S.C. § 9622(b)(3).

"CERCLA" shall mean the Comprehensive Environmental Response,

Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675.

"Certification of Completion of the Final Remedial Action" shall mean the

certification of completion of the remedial action associated with the Final Record

of Decision for the B.F. Goodrich Site.

"Colton" shall mean the City of Colton and any of its present, former, or

future subdivisions, departments, commissions, agencies, or instrumentalities.

"Consent Decree" shall mean this Consent Decree and all appendices

attached hereto. In the event of conflict between this Consent Decree and any

appendix, this Consent Decree shall control.

"Consolidated Federal Action" shall mean City of Colton v. American

~ Promotional Events, Inc., et al., Case No. ED CV 09-01864 PSG (SSx); Goodrich

Corporation v. Chung Ming Wong, et al., Case No. CV 09-6630 PSG (SSx);

CONSENT DECREE

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County of San Bernardino, et al., v. Tung Chun Co., et al., Case No. CV 09-06632

PSG (SSx); City of Rialto and Rialto Utility Authority v. United States Department

of Defense, et al., Case No. CV 09-7501 PSG (SSx); and Emhart Industries, Inc. v.

American Promotional Events, Inc.-West, et al., Case No. CV 09-07508 PSG

(SSx), all of which were consolidated pursuant to an order issued on January 20,

2010; and United States of America v. Goodrich Corporation, et al., Case No. 10-

00824 PSG (SSx), which was consolidated with the previously consolidated cases

pursuant to an order issued on June 3, 2010; and City of Colton v. AmeNican

Promotional Events, Inc., et al., Case No. ED CV OS-01479 PSG (SSx).

"County" shall mean the County of San Bernardino and any of its present,

former, or future subdivisions, departments, commissions, agencies, or

instrumentalities.

"County Property" shall mean the property known as the Mid Valley

Sanitary Landfill, which is currently owned by the County of San Bernardino,

including those areas currently leased to Robertson's Ready Mix. The County

Property is bounded by Summit Avenue on the north, generally by Alder Avenue

on the east, (until Alder Avenue terminates at or within the Robertson's Ready Mi

leasehold), generally by the municipal boundaries of the Cities of Fontana and

Rialto on the west except for a strip of land located in the City of Fontana, and by

Casmalia Street on the south. The County Property is depicted generally on the

map included in Appendix A.

"County Related Parties" shall mean Robertson's Ready Mix, Inc., the

Schulz Parties' and the Zambelli Parties.2

~ The Schulz Parties include the following: Edward Stout; Edward Stout as the

Trustee of the Stout-Rodriquez Trust; Elizabeth Rodriquez; John Callagy as

Trustee of the Fredricksen Children's Trust Under Trust Agreement Dated

February 20, 1985; John Callagy as Trustee of the E.F. Schulz Trust; Linda

CONSENT DECREE

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"Day" or "day" shall mean a calendar day unless expressly stated to be a

business day. In computing any period of time under this Consent Decree, where

the last day would fall on a Saturday, Sunday, or federal or state holiday, the

period shall run until the close of business of the next working day.

"DOJ" shall mean the United States Department of Justice and its successor

departments, agencies, or instrumentalities.

"Effective Date" shall mean the date upon which this Consent Decree is

entered by the District Court as recorded on the District Court docket, or, if the

District Court instead issues an order approving the Consent Decree, the date such

order is recorded on the District Court docket, whichever occurs first.

"EPA" shall mean the United States Environmental Protection Agency and

its successor departments, agencies, or instrumentalities.

"EPA Hazardous Substance Superfund" shall mean the Hazardous

Substance Superfund established by the Internal Revenue Code, 26 U.S.C. § 9507.

"Federal Defendants" shall mean any federal agency, department, or

instrumentality named or alleged to be liable for contamination in the Consolida

~ Federal Action, including but not limited to the United States Army, the

Department of the Navy, the United States Air Force, the United States

Department of Defense, the Farm Credit Administration, the United States

Customs Department, and any of their predecessors or successors.

Fredricksen; Linda Fredricksen as Trustee of the Walter M. Pointon Trust Dated

11/19/1991; Linda Fredricksen as Trustee of the Michelle Ann Pointon Trust

Under Trust Agreement Dated February 15, 1985; Linda Fredricksen as Trustee of

the E.F. Schulz Trust; John Callagy; Mary Callagy; Jeanine Elzie; Stephen

Callagy; Michelle Ann Pointon; and Anthony Rodriquez.

2 The Zambelli Parties include the following: Zambelli Fireworks Manufacturing

Company, Inc., Zambelli Fireworks Company, aka Zambelli Fireworks

Internationale, and Zambelli Fireworks Manufacturing Company.

CONSENT DECREE


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"Final Record of Decision" shall mean the final Record of Decision (and all

attachments) for the B.F. Goodrich Site that will be signed by EPA in the future,

and after lodging of this Consent Decree.

"Final Remedial Action" shall mean activities associated with implementing

the Final Record of Decision.

"Interest" shall mean interest at the rate specified for interest on investments

of the EPA Hazardous Substance Superfund established by 26 U.S.C. § 9507,

compounded annually on October 1 of each year, in accordance with 42 U.S.C.

§ 9607(a). The applicable rate of interest shall be the rate in effect at the time the

interest accrues. The rate of interest is subject to change on October 1 of each

year.

"Local Government Entities" shall mean the County, Rialto, and Colton,

which includes their past and current officers and employees acting in the course

and scope of their employment.

"Paragraph" shall mean a portion of this Consent Decree identified by an

~ Arabic numeral or an upper or lower case letter.

"Parties" shall mean the United States, the Local Government Entities, the

~ County Related Parties, and the Settling Defendants.

"Peters Parties" shall mean Thomas O. Peters and The 1996 Thomas O.

~ Peters And Kathleen S. Peters Revocable Trust and includes past and current

~ trustees and beneficiaries, agents, heirs, successors, and assigns.

"Plaintiffs" shall mean the United States, on behalf of EPA, and the Local

Government Entities.

"PSI" shall mean Pyro Spectaculars, Inc. and includes past and current

~ officers and employees acting in the course and scope of their employment,

~ successors, and assigns.

"PSI Financial Information" shall mean those financial documents identified

CONSENT DECREE

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in Appendix C.

"PSI Insurance Information" shall mean those insurance documents

identified in Appendix D.

"RABSP" shall mean the parcel of land originally containing the former

Rialto Ammunition Backup Storage Point, located in San Bernardino County,

California. The 160-Acre Area is within the geographic area of the RABSP. The

RABSP is depicted generally on the map included in Appendix A.

"RABSP Site" shall mean the RABSP and all areas where contamination

from the RABSP otherwise comes to be located.

"RCRA" shall mean the Solid Waste Disposal Act, 42 U.S.C. §§ 6901-6992.

"Rialto" shall mean the City of Rialto and any of its present, former, or

future subdivisions, departments, commissions, agencies, or instrumentalities,

including, but not limited to, the Rialto Utility Authority and the Rialto

~ Redevelopment Agency.

"Section" shall mean a portion of this Consent Decree identified by a

~ numeral.

"Settling Defendants" shall mean PSI, Astro, Trojan, Peters Parties, and

Stonehurst.

"State" shall mean the State of California.

"Stonehurst" shall mean Stonehurst Site LLC and includes past and current

officers, members and managers acting in the course and scope of their

employment, successors, and assigns.

"Stonehurst Property" shall mean the approximate 5-acre property in the

~ County of San Bernardino, County APNs 1133-07-105, 1133-07-106, and 1133-

~ 07-107, collectively, located at 2298 West Stonehurst Drive, Rialto, California.

~ The Stonehurst Property is depicted generally on the map included in Appendix A.

"Trojan" shall mean Trojan Fireworks Company and includes past and

CONSENT DECREE


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current officers and employees acting in the course and scope of their employment,

successors, and assigns.

"United States" shall mean the United States of America and each

department, agency, and instrumentality of the United States, including EPA and

the Federal Defendants.

"Waste Material" shall mean (a) any hazardous substance under Section

101(14) of CERCLA, 42 U.S.C. § 9601(14); (b) any pollutant or contaminant

under Section 101(33) of CERCLA, 42 U.S.C. § 9601(33); and (c) any "solid

waste" under Section 1004(27) of RCRA, 42 U.S.C. § 6903(27).

"West Side Area" shall mean the County Property and the Stonehurst

Property. The West Side Area is depicted generally on the map included in

Appendix A.

"West Side Site" shall mean the West Side Area and all areas where TCE

and perchlorate contamination from the West Side Area otherwise comes to be

located.

V. STATEMENT OF PURPOSE

4. By entering into this Consent Decree, the mutual objectives of the

Parties are to avoid difficult and prolonged litigation and resolve claims as set i

herein.

VI. SETTLEMENT OF RESPONSE COSTS

5. Pam

The Settling Defendants shall severally pay a total of five million six

hundred sixty-three thousand dollars ($5,663,000) to the United States and the

Local Government Entities. Of this amount, the United States shall receive four

million three hundred thirty thousand dollars ($4,330,000); Colton shall receive

five hundred thousand dollars ($500,000); Rialto shall receive five hundred

CONSENT DECREE


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thousand dollars ($500,000); and the County shall receive three hundred thirty-

three thousand dollars ($333,000). The payments to be made by the Settling

Defendants set forth above are for reimbursement of response costs.

The Settling Defendants' obligations to pay these amounts are described

below.

a. Pyro Spectaculars, Inc. Pam

i. Pyro Spectaculars, Inc. shall pay to EPA the principal

amount of two million two hundred eighty-six thousand, six hundred sixty-seven

dollars and ninety-one cents ($2,286,667.91).

ii. Pyro Spectaculars, Inc. shall pay to Rialto the principal

amount of three hundred thirty-three thousand, three hundred thirty-three dollars

and fifty cents ($333,333.50).

iii. Pyro Spectaculars, Inc. shall pay to Colton the principal

amount of three hundred thirty-three thousand, three hundred thirty-three dollars

and fifty cents ($333,333.50).

iv. Pyro Spectaculars, Inc. shall pay to the County the

principal amount of two hundred twenty-two thousand dollars and eleven cents

($222,000.11).

v. In addition to the payments described in subparagraphs

i.— iv. above, Pyro Spectaculars, Inc. shall pay to EPA the additional principal

amount of six hundred thousand dollars ($600,000) in three (3) installments. The

first installment payment of two hundred thousand dollars ($200,000) is due within

one (1) year after the Effective Date. The second installment payment of two

hundred thousand dollars ($200,000) is due within two (2) years after the Effective

Date. The third installment payment of two hundred thousand dollars ($200,000)

is due within three (3) years after the Effective Date. Each installment payment

shall also include an additional sum for Interest accrued on the unpaid portion of

CONSENT DECREE

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the principal amount calculated from the 30th day after the Effective Date until the

date of the payment. The United States shall provide Pyro Spectaculars, Inc. with

information on the amount of Interest due thirty (30) days before the due date for

each of the installment payments required by this Paragraph.

b. Astro, Tr~an, the Peters Parties, and Stonehurst Payments

Astro, Trojan, the Peters Parties, and Stonehurst shall jointly and severally

pay as follows:

i. As to EPA the principal amount of one million four

hundred forty-three thousand, three hundred thirty-two dollars and nine cents

($1,443,332.09).

ii. As to Rialto the principal amount of one hundred sixty-

six thousand, six hundred sixty-six dollars and fifty cents ($166,666.50).

iii. As to Colton the principal amount of one hundred sixty-

six thousand, six hundred sixty-six dollars and fifty cents ($166,666.50).

iv. As to the County the principal amount of one hundred to

thousand, nine hundred ninety-nine dollars and eighty-nine cents ($110,999.89).

6. Escrow for Payments to Plaintiffs

No later than twenty (20) business days after Settling Defendants

receive notice that this Consent Decree has been lodged with the Court, each

~ Settling Defendant shall deposit its respective share of the payment due Plaintiffs

into an interest-bearing escrow account at a bank that is insured by the Federal

Deposit Insurance Corporation. Within thirty (30) days after the Effective Date,

the funds placed in the Escrow Account together with interest thereon, shall be

disbursed as described in Paragraph 5; provided however, the installment paymen

required by Section Paragraph 5 a.v. shall be due as set forth therein.

7. Payment Instructions

a. Any payments due EPA pursuant to Section VI (Settlement of

CONSENT DECREE

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Response Costs) shall be made in accordance with instructions provided to such

Settling Defendants) by EPA or the Financial Litigation Unit ("FLU") of the

United States Attorney's Office for the Central District of California. Any

payments due Local Government Entities shall be made via wire transfer as

described in Paragraphs 8 — 10.

b. At the time of each installment payment required by Paragraph

5 a.v., Pyro Spectaculars, Inc. shall send notice to DOJ and EPA that payment has

been made in accordance with Section XIV (Notices and Submissions), and to the

EPA Cincinnati Finance Office by email at [email protected], or by

mail to:

EPA Cincinnati Finance Office26 Martin Luther King DriveCincinnati, Ohio 45268

Such notice shall reference the Site/Spill ID Number 09JW, and DOJ Case Num

90-11-2-09952.

c. The total amount to be paid to EPA pursuant to Section VI

(Settlement of Response Costs) shall be deposited by EPA in the B.F. Goodrich

Special Account to be retained and used to conduct or finance response actions at

or in connection with the Site, or to be transferred by EPA to the EPA Hazardous

Substance Superfund.

8. Payment Instructions for Rialto:

City of Rialto -- General Fund AccountAccount Number -- 9739869858Routing No. 121000248Wells Fargo Bank21680 Gateway Center Drive, #225Diamond Bar, California 91765Contact at bank: Yolanda Anaya (909) 612-1389

CONSENT DECREE

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9. Payment Instructions for Colton:

Account of City of ColtonAccount No. 143138235Routin No. 026009593Bank o~ America101 South Marengo Ave.Pasadena, California 91101

10. Payment Instructions for the County

Account Name: County of San BernardinoAccount #: 1496150090ABA#: 026009593Bank of AmericaBrea Client Service CenterBranch: Los Angeles, Government BankingBank Contact & Ph#: Wendy Sieru~a 909-387-6375Ref: Solid Waste Management Division of CountyPublic Works Department275 Valencia AvenueBrea, California 92823

VII. FAILURE TO COMPLY WITH PAYMENT OBLIGATIONS

11. Interest on Payments and Accelerated Payments

If any Settling Defendant fails to make its payments required by Section VI

(Settlement of Response Costs) by the required due date, Interest shall accrue on

the unpaid balance owed by that Settling Defendant from the date payment is due

through the date of payment. If Pyro Spectaculars, Inc. fails to make any

installment payment required by Section VI (Settlement of Response Costs) by the

required due date, all remaining installment payments and all accrued Interest shall

become due immediately upon such failure. Interest shall continue to accrue on

any unpaid amounts until the total amount due has been received.

12. Stipulated Penalty

If any amounts due the United States or the Local Government Entities are

not paid by their respective required date(s), the non-paying or late-paying Settling

Defendants) shall be in violation of this Consent Decree and shall pay, as a

stipulated penalty, in addition to the Interest required by Paragraph 1 1, five

CONSENT DECREE

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thousand dollars ($5,000) per violation per day to the unpaid party for each day

such payment is late. Stipulated penalties are due and payable within thirty (30)

days after the date of the demand for payment of the penalty or penalties.

All payments of stipulated penalties owed to the United States under this

Paragraph shall be identified as "stipulated penalties" and shall be made in

accordance with instructions provided to such Settling Defendants) by the United

States. Such payment shall reference Site/Spill ID Number 09JW, and DOJ Case

Number 90-11-2-09952.

All payments of stipulated penalties to each of the Local Government

Entities (if they are the unpaid party) and not including the County under this

Paragraph shall be made as set forth in Paragraphs 8, 9, and 10, respectively.

At the time of payment of a stipulated penalty to the United States, the non-

paying or late-paying Settling Defendants) shall send notice to DOJ and EPA that

payment has been made in accordance with Section XIV (Notices and

Submissions). Such notice shall reference Site/Spill ID Number 09JW, and DOJ

Case Number 90-11-2-09952.

Penalties shall accrue as provided in this Paragraph regardless of whether

United States or the Local Government Entities have notified the non-paying

Settling Defendants) of the violation or made a demand for payment, but need

only be paid upon demand. All penalties shall begin to accrue on the day after

payment is due and shall continue to accrue through the date of payment. Nothing

in this Consent Decree shall prevent the simultaneous accrual of separate penalties

for separate violations of this Consent Decree.

13. Payments made under this Section shall be in addition to any other

remedies or sanctions available to Plaintiffs by virtue of Settling Defendants'

failure to comply with the requirements of this Consent Decree.

14. Notwithstanding any other provision of this Section, a Plaintiff may,

CONSENT DECREE

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in its unreviewable discretion, waive payment of any portion of the stipulated

penalties due to that Plaintiff pursuant to this Consent Decree. Payment of

stipulated penalties shall not excuse Settling Defendants from payment as required

by Section VI (Settlement of Response Costs) or from performance of any other

requirements of this Consent Decree.

VIII. COVENANTS BY PLAINTIFFS

15. United States' Covenants

a. Ability to Pay Parties. Except as specifically provided in

Section IX (Reservation of Rights by Plaintiffs), the United States covenants not to

sue or to take administrative action against PSI and Astro pursuant to Sections 106

and 107(a) of CERCLA, 42 U.S.C. §§ 9606 and 9607(a), and Section 7003 of

RCRA, 42 U.S.C. § 6973, relating to the B.F. Goodrich Site, including but not

limited to the 2010 ROD Response Costs and all response costs incurred or that

will be incurred in connection with the B.F. Goodrich Site. With respect to present

and future liability, these covenants shall take effect upon receipt by Plaintiffs of

all amounts required by Paragraphs 5 a.i.— iv. and 5 b.i. — iv. and any Interest or

stipulated penalties due thereon under Section VII (Failure to Comply with

Payment Obligations). These covenants are conditioned upon the satisfactory

performance by PSI and Astro of their obligations under this Consent Decree,

including but not limited to, payment of all amounts due under Section VI

(Settlement of Response Costs), and any Interest or stipulated penalties due

thereon under Section VII (Failure to Comply with Payment Obligations). These

covenants are also conditioned upon the veracity and completeness of the Financial

Information and the Insurance Information provided to EPA by Pyro Spectaculars,

Inc., the Insurance Information provided to EPA by Astro, the financial, insurance,

and indemnity certifications made by Pyro Spectaculars, Inc., and the insurance

CONSENT DECREE

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certification made by Astro, as described in Paragraphs 37 and 38. If the Financial

Information or the Insurance Information provided by Pyro Spectaculars, Inc. or

Astro, or the financial, insurance, or indemnity certification made by Pyro

Spectaculars, Inc. or Astro in Paragraphs 37 and 38, is subsequently determined by

EPA to be materially false or, in any material respect, inaccurate, such Settling

Defendant shall forfeit all payments made pursuant to this Consent Decree and

these covenants and the contribution and other protections in Paragraphs 28 - 31

shall be null and void as to such Settling Defendant. Such forfeiture shall not

constitute liquidated damages and shall not in any way foreclose the United States'

right to pursue any other causes of action arising from such Settling Defendant's

materially false or materially inaccurate information. These covenants extend only

to PSI and Astro and do not extend to any other person.

b. Non-Ability to Pay Parties. Except as specifically provided in

Section IX (Reservation of Rights by Plaintiffs) and subparagraphs 15 c. — e., the

United States covenants not to sue or to take administrative action against Trojan,

the Peters Parties, and Stonehurst pursuant to Sections 106 and 107(a) of

CERCLA, 42 U.S.C. §§ 9606 and 9607(a) and Section 7003 of RCRA, 42 U.S.C.

§ 6973, relating to the B.F. Goodrich Site, including but not limited to the 2010

ROD Response Costs and all response costs incurred or that will be incurred in

connection with the B.F. Goodrich Site. With respect to present and future

response costs, these covenants shall take effect upon receipt by Plaintiffs of all

amounts required by Paragraphs 5 a.i. — iv. and 5 b.i. — iv. and any Interest or


Payment Obligations). These covenants are conditioned upon the satisfactory

performance by Trojan, the Peters Parties, and Stonehurst of their obligations

under this Consent Decree, including but not limited to, payment of all amounts

due under Section VI (Settlement of Response Costs), and any Interest or

CONSENT DECREE

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Payment Obligations). These covenants extend only to Trojan, the Peters Parties,

and Stonehurst and do not extend to any other person.

c. United States' Pre-certification Reservations for Non-Ability to

Pay Parties. Notwithstanding any other provision of this Consent Decree, the

United States reserves, and this Consent Decree is without prejudice to, the right to

institute proceedings in this action or in a new action, or to issue an administrative

order, seeking to compel Trojan, the Peters Parties, and Stonehurst

1) to perform further response actions relating to the B.F.

Goodrich Site; or

2) to reimburse the United States for additional costs of

response if, prior to Certification of Completion of the Final Remedial Action for

the B.F. Goodrich Site:

i. conditions at the B.F. Goodrich Site, previously

unknown to EPA, are discovered, or

ii. information, previously unknown to EPA, is

received, in whole or in part,

and EPA determines that these previously unknown conditions or information

together with any other relevant information indicates that the B.F. Goodrich Site

Final Remedial Action is not protective of human health or the environment.

d. United States' Post-certification Reservations for Non-Ability

to Pay Parties. Notwithstanding any other provision of this Consent Decree, the


~ institute proceedings in this action or in a new action, or to issue an administrative

order, seeking to compel Trojan, the Peters Parties, and Stonehurst

1) to perform further response actions relating to the B.F.

Goodrich Site; or

CONSENT DECREE

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2) to reimburse the United States for additional costs of

response if, subsequent to Certification of Completion of the Final Remedial

Action for the B.F. Goodrich Site:

i. conditions at the B.F. Goodrich Site, previously

unknown to EPA, are discovered, or

ii. information, previously unknown to EPA, is

received, in whole or in part,

and EPA determines that these previously unknown conditions or information

together with any other relevant information indicates that the B.F. Goodrich Site

Final Remedial Action is not protective of human health or the environment.

e. For purposes of Paragraph 15 c., the information and the

conditions known to EPA shall include only that information and those conditions

known to EPA as of the date the Final Record of Decision is signed and set forth in

the Final Record of Decision and the administrative record supporting the Final

Record of Decision. For purposes of Paragraph 15 d., the information and the

conditions known to EPA shall include only that information and those conditions

known to EPA as of the date of Certification of Completion of the Final Remedial

Action and set forth in the Final Record of Decision, the administrative record

supporting the Final Record of Decision, the post-Final Record of Decision

administrative record, or in any information required to be submitted to EPA

during the conduct of the remedial design and remedial action, prior to the

Certification of Completion of the Final Remedial Action.

f. Except as specifically provided in Section IX (Reservation of

Rights by Plaintiffs) and to the same extent as set forth in Paragraphs 20 and 24

(Covenants By Settling Defendants And Reservation Of Rights), Federal

Defendants release, covenant not to sue and agree not to assert any claims or

causes of action against the Settling Defendants with respect to the RABSP Site,

CONSENT DECREE

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and this Consent Decree, including but not limited to:

1) any claim pursuant to Sections 107 or 113 of CERCLA,

42 U.S.C. §§ 9607 or 9613, Section 7002(a) of RCR.A, 42 U.S.C. § 6972(a), or

state law, in connection with the RABSP Site; or

2) any claim, whether express or deemed by court order, in

the Consolidated Federal Action, in connection with the RABSP Site.

g. Federal Defendants specifically reserve, and this Consent

Decree is without prejudice to, all rights against the Settling Defendants with

respect to claims for contribution whether based on federal or state statutes or

common law arising out of: (a) claims in the City of Riverside v. Black &Decker

(U. S), Inc., et al., Case No. BC410878, or (b) claims asserted by any person or

entity that is not or was not a party to the Consolidated Federal Action as of

August 24, 2012; or (c) claims for natural resource damages.

16. Local Government Entities' Covenants and Rel

Except as specifically provided herein and in Section IX (Reservation of

Rights by Plaintiffs), each of the Local Government Entities and the County

Related Parties releases and covenants not to sue or take administrative action

against any of the Settling Defendants, pursuant to Sections 107(a) or 113 of

CERCLA, 42 U.S.C. §§ 9607(a) and 9613, Section 7002 of RCRA, 42 U.S.C.

§ 6972, or any state or federal statute or state or federal common law with respect

to all claims of any kind, known and unknown, against Settling Defendants in

connection with the alleged release or threatened release of any of the Basin

Contaminants at, on, or under the RABSP Site. With respect to present and future

liability, these covenants and releases shall take effect upon receipt by Plaintiffs of

all amounts required by Paragraphs 5 a.i.— iv. and 5 b.i. — iv. and any Interest or


Payment Obligations). These covenants and releases are also conditioned upon the

CONSENT DECREE

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satisfactory performance by Settling Defendants of their obligations under this

Consent Decree, and the veracity and completeness of the Financial Information

and the Insurance Information provided to EPA by Pyro Spectaculars, Inc., the

Insurance Information provided to EPA by Astro, the financial, insurance, and

indemnity certifications made by Pyro Spectaculars, Inc., and the insurance

certification made by Astro, as described in Paragraphs 37 and 38. If the Financial

Information or the Insurance Information provided by Pyro Spectaculars, Inc. or

Astro, or the financial, insurance, or indemnity certification made by Pyro

Spectaculars, Inc. or Astro in Paragraphs 37 and 38, is subsequently determined by

EPA to be materially false or, in any material respect, inaccurate, such Settling

Defendant shall forfeit all payments made pursuant to this Consent Decree and

these covenants and the contribution and other protections in Paragraphs 28 — 31

shall be null and void as to such Settling Defendant.

In releasing all unknown claims, each of the Local Government Entities and

the County Related Parties expressly waive the provisions of Section 1542 of the

California Civil Code, which provides:

A general release does not extend to claims which thecreditor does not know or suspect to exist in his or herfavor at the time of executing the release, which if knownby him or her must have materially affected his or hersettlement with the debtor.

IX. RESERVATION OF RIGHTS BY PLAINTIFFS

17. The United States reserves, and this Consent Decree is without

prejudice to, all rights against Settling Defendants with respect to all matters not

expressly included within the Covenants by the United States in Paragraph 15.

Notwithstanding any other provision of this Consent Decree, the United States

reserves all rights against Settling Defendants with respect to:

a. liability for failure of any Settling Defendant to meet a

CONSENT DECREE

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requirement of this Consent Decree;

b. criminal liability;

c. liability for damages for injury to, destruction of, or loss of

natural resources, and for the costs of any natural resource damage assessments;

d. liability based on the ownership or operation of any portion of

the B.F. Goodrich Site by a Settling Defendant when such ownership or operation

commences after signature of this Consent Decree by such Settling Defendant and

there is a new release on or related to such property;

e. liability based on a Settling Defendant's transportation,

reatment, storage, or disposal, or arrangement for transportation, treatment,

storage, or disposal of a Waste Material at or in connection with the B.F. Goodrich

site, after signature of this Consent Decree by such Settling Defendant;

f. liability arising from the past, present, or future disposal,

release or threat of release of a Waste Material outside of the B.F. Goodrich Site;

I'g. liability for costs incurred by EPA, if any, with respect to the

West Side Site.

For purposes of subparagraphs d. — e. above, migration of previously released

Waste Material is not a new release or disposal of Waste Material.

18. Notwithstanding any other provision of this Consent Decree, the


reinstitute or reopen this action, or to commence a new action seeking relief other

than as provided in this Consent Decree, if the Financial Information or the

Insurance Information provided by Pyro Spectaculars, Inc. and Astro, or the

financial, insurance, or indemnity certification made by Pyro Spectaculars, Inc.

Astro in Paragraphs 37 and 38, is materially false or, in any material respect,

inaccurate. This Paragraph only applies to PSI and Astro.

CONSENT DECREE

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19. Each of the Local Government Entities and the County Related Parti

reserves, and this Consent Decree is without prejudice to, all rights against the

Settling Defendants with respect to:

a. liability for failure of any Settling Defendant to meet a

~ requirement of this Consent Decree;

b. criminal liability;

c. liability based on the ownership or operation of any portion of

the R.ABSP Site by a Settling Defendant when such ownership or operation

commences after signature of this Consent Decree by such Settling Defendant and

there is a new release on or related to such property;

d. liability based on a Settling Defendant's transportation,

treatment, storage, or disposal, or arrangement for transportation, treatment,

storage, or disposal of a Waste Material at or in connection with the RABSP Site,

after signature of this Consent Decree by such Settling Defendant;

e. liability arising from the past, present, or future disposal,

release or threat of release of a Waste Material outside of the RABSP Site;

f. liability arising from past, present or future releases or

threatened releases at the RABSP Site, where the Waste Material at issue is not a

Basin Contaminant;

g. liability of a Settling Defendant arising from a new release,

threat of release, or disposal of a Waste Material either within or outside of the

RABSP Site, where such release, threat of release, or disposal occurs after

signature of this Consent Decree by such Settling Defendant;

h. liability related to bodily injury;

i. claims for contribution whether based on federal or state

statutes or common law arising out of: (a) claims in City of Riverside v. Black &

Decker (U.S.), Inc., et al., Case No. BC410878; (b) claims asserted by any person

CONSENT DECREE

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or entity that is not or was not a party to the Consolidated Federal Action as of

August 24, 2012; or, (c) claims for natural resource damages;

j. any rights of the Local Governmental Entities to enforce the

land use covenant on the Stonehurst Property, pursuant to the terms of that

document;

k. any rights of Rialto that arise from the exercise and

enforcement of its municipal police power regulatory authority over persons,

entities, properties and business transactions within the jurisdiction of Rialto.

However, nothing in the foregoing sentence of this subparagraph k. reserves

Rialto's rights under any federal, state, or local law to seek enforcement against t

Settling Defendants to remediate soil or groundwater for existing Waste Material

unless such right is reserved in other subparagraphs of this Paragraph 19; and

1. the right of the County, which is hereby acknowledged, to

compel Settling Defendants to install a basic asphalt cap on the Stonehurst

Property as approved by the California Regional Water Quality Control Board

(Santa Ana Region), and record a land use covenant approved by both the

California Regional Water Quality Control Board (Santa Ana Region) and the

County if, within twenty-four (24) months after the Effective Date, Settling

Defendants have not installed such cap or recorded such land use covenant for

maintenance of that cap. This reserved right shall be enforceable by the County

and subject to the continuing jurisdiction of this Court through this Consent

Decree.

For purposes of subparagraphs c., d., and g., above, migration of existing Waste

Material is not a new release or disposal of Waste Material into soil, groundwater

or atmosphere.

CONSENT DECREE

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X. COVENANTS BY SETTLING DEFENDANTS AND RESERVATION

OF RIGHTS

20. Except as provided in Paragraphs 24 and 25, each of the Settling

Defendants releases, covenants not to sue and agrees not to assert any claims or

causes of action against the United States, or its contractors or employees, with

respect to the B.F. Goodrich Site and this Consent Decree; and against the Federal

Defendants and the Local Government Entities, County Related Parties, or their

contractors or employees, with respect to the RABSP Site, and this Consent

Decree, including but not limited to:

a. any direct or indirect claim for reimbursement from the

Hazardous Substance Superfund based on Sections 106(b)(2), 107, 111, 112, or

113 of CERCLA, 42 U.S.C. §§ 9606(b)(2), 9607, 9611, 9612, or 9613, or any

other provision of law;

b. any claim arising out of response actions at or in connection

with the B.F. Goodrich Site relating to the United States, and in connection with

the B.F. Goodrich Site and the RABSP relating to the Federal Defendants, the

Local Government Entities, and County Related Parties, including any claim under

the United States Constitution, the Tucker Act, 28 U.S.C. § 1491, the Equal Access

to Justice Act, 28 U.S.C. § 2412, as amended, or at common law; or

c. any claim pursuant to Sections 107 or 113 of CERCLA, 42

U.S.C. §§ 9607 or 9613, Section 7002(a) of RCRA, 42 U.S.C. § 6972(a), or state

law, in connection with the B.F. Goodrich Site relating to the United States, and in

connection with the RABSP Site relating to the Federal Defendants, the Local

Government Entities, and County Related Parties; or

d. any claim, whether express or deemed by court order, in the

Consolidated Federal Action.

CONSENT DECREE

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21. Except as provided in Paragraph 24, each of the Settling Defendants

releases and covenants not to sue or take administrative action against any of the

Local Government Entities or County Related Parties, pursuant to Sections 107(a)

or 113 of CERCLA, 42 U.S.C. §§ 9607(a) and 9613, Section 7002 of RCRA, 42

U.S.C. § 6972, or any other state or federal statute or state or federal common law

with respect to all claims of any kind, known and unknown, against the Local

Government Entities or County Related Parties in connection with the alleged

release or threatened release of any of the Basin Contaminants at, on, or under the

RABSP Site. With respect to present and future liability, these covenants and

releases shall take effect upon receipt by Plaintiffs of all amounts required by

Paragraphs 5 a.i.— iv. and 5 b.i. — iv. and any Interest or stipulated penalties due

thereon under Section VII (Failure to Comply with Payment Obligations).

In releasing all unknown claims, each of the Settling Defendants waives the

provisions of Section 1542 of the California Civil Code which provides:

A general release does not extend to claims which thecreditor does not know or suspect to exist in his or herfavor at the time of executing the release, which if knownby him or her must have materially affected his or hersettlement with the debtor.

22. These covenants and releases shall not apply to the United States in

the event the United States brings a cause of action or issues an order pursuant to

any of the reservations set forth in Section IX (Reservations of Rights by

Plaintiffs), other than in Paragraph 17 a. (liability for failure to meet a requirement

of the Consent Decree) or 17 b. (criminal liability), but only to the extent that

Settling Defendants' claims arise from the same response action, response costs,

or damages that the United States is seeking pursuant to the applicable reservation.

23. Nothing in this Consent Decree shall be deemed to constitute approval

or preauthorization of a claim within the meaning of Section 111 of CERCLA, 42

U.S.C. § 9611, or 40 C.F.R. §300.700(d).

CONSENT DECREE

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24. Each of the Settling Defendants reserves, and this Consent Decree is

without prejudice to, all rights against the Local Government Entities and County

Related Parties with respect to:

a. liability based on the ownership of any portion of the RABSP

Site by Local Government Entities or County Related Parties when such ownership

commences after signature of this Consent Decree by such Local Government

Entities or County Related Parties and there is a new release on or related to such

property;

b. liability based on Local Government Entities' or County

Related Parties' transportation, treatment, storage, or disposal, or arrangement for

transportation, treatment, storage, or disposal of a Waste Material at or in

connection with the RABSP Site, after signature of this Consent Decree by such

Local Government Entities or County Related Parties;

c. liability arising from the past, present, or future disposal,

release or threat of release of a Waste Material outside of the RABSP Site;

d. liability arising from past, present or future releases or

threatened releases at the RABSP Site, where the Waste Material at issue is not a

Basin Contaminant;

e. liability of Local Government Entities or County Related

Parties arising from a new release, threat of release, or disposal of a Waste

Material either within or outside of the RABSP Site, where such release, threat of

release, or disposal occurs after signature of this Consent Decree by such Local

Government Entities or County Related Parties;

f. liability related to bodily injury; and

g. claims for contribution whether based on federal or state

statutes or common law arising out of: (a) claims in City of Riverside v. Black &

Decker (U.S.), Inc., et al., Case No. BC410878; (b) claims asserted by any person

CONSENT DECREE

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or entity that is not or was not a party to the Consolidated Federal Action as of

August 24, 2012; or, (c) claims for natural resource damages.

For purposes of this subparagraphs a., b., and e. above, migration of existing Was

Material is not a new release or disposal of Waste Material into soil, groundwater

or atmosphere.

25. Each of the Settling Defendants reserves, and this Consent Decree is

without prejudice to, all rights against the Federal Defendants with respect to

claims for contribution whether based on federal or state statutes or common law

arising out of: (a) claims in City of Riverside v. Black &Decker (U.S.), Inc., et al.,

Case No. BC410878; (b) claims asserted by any person or entity that is not or was

not a party to the Consolidated Federal Action as of August 24, 2012; or, (3)

claims for natural resource damages.

26. Settling Defendants agree not to assert any claims and to waive all

claims or causes of action (including but not limited to claims or causes of action

under Sections 107(a) and 113 of CERCLA) or any other federal or state law that

they may have for response costs relating to the RABSP Site against each other or

any other person who is or was a party in the Consolidated Federal Action. This

waiver shall not apply with respect to any defense, claim, or cause of action that a

Settling Defendant may have against any person if such person asserts a claim or

cause of action relating to the RABSP Site against such Settling Defendant, after

lodging of this Consent Decree.

27. PSI and Astro shall terminate their appeals before the Ninth Circuit in

Astro Pyrotechnics, Inc. et al., v. Zambelli Fireworks Manufacturing Co., et al.,

No. 11-56104, Emhart Industries, Inc. v. County of San Bernardino, et al., No. 12-

55083, and Astro Pyrotechnics, Inc. et al., v. County of San Bernardino, et al., No.

12-55411, including each case subject to the Amended Order Consolidating

Appeals filed on April 16, 2012 (Dkt 12) within thirty (30) days after the Effective

CONSENT DECREE

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Date, and thereafter shall not participate or assist in those appeals. In the event the

this Consent Decree is voided by one or more of the Parties pursuant to Paragraph

43, the Parties agree that they will be bound by the final decision in the

aforementioned appeals.

XI. EFFECT OF SETTLEMENT/CONTRIBUTION

28. Except as provided in Paragraph 26, nothing in this Consent Decree

shall be construed to create any rights in, or grant any cause of action to, any

person not a Party to this Consent Decree. Except as provided in Section X

(Covenants by Settling Defendants), each of the Parties expressly reserves any and

all rights (including, but not limited to, under Section 113 of CERCLA, 42 U.S.C.

§ 9613), defenses, claims, demands, and causes of action which it may have with

respect to any matter, transaction, or occurrence relating in any way to the RABSP

Site against any person not a Party hereto. Nothing in this Consent Decree

diminishes the right of the United States, pursuant to Section 1130(2) and (3) of

CERCLA, 42 U.S.C. § 96130(2)-(3), to pursue any such persons to obtain

additional response costs or response action and to enter into settlements that give

rise to contribution protection pursuant to Section 1130(2).

29. The Parties agree, and by entering this Consent Decree this Court

finds, that this settlement constitutes ajudicially-approved settlement for purposes

of Section 1130(2) of CERCLA, 42 U.S.C. § 96130(2), and that the Settling

Defendants are entitled, as of the Effective Date, to protection from contribution

actions or claims as provided by Section 1130(2) of CERCLA, or as may be

otherwise provided by law, for "matters addressed" in this Consent Decree. The

"matters addressed" in this Consent Decree are all response actions taken or to be

taken and all response costs incurred or to be incurred at or in connection with the

B.F. Goodrich Site or the West Side Site by the United States or any other person,

CONSENT DECREE

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except for the State, including the 2010 ROD Response Costs; provided however,

that if the United States, Local Government Entities, or County Related Parties

exercise rights under the reservations in Section IX (Reservations of Rights by

Plaintiffs), other than in Paragraphs 17 a. or 19 a. (liability for failure to meet a

requirement of Consent Decree) or 17 b. or 19 b. (criminal liability), or Paragraph

18 with respect to the United States, the "matters addressed" in this Consent

Decree will no longer include those future response costs or response actions that

are within the scope of the exercised reservation.

30. The Parties further agree, and by entering this Consent Decree this

Court further finds, that the payments and obligations provided for in this Consent

Decree represent a good faith compromise of disputed claims and that the

compromise represents a fair, reasonable, and equitable resolution. With regard to

any claims for costs, damages, or other claims against the Parties, the Parties agree

and this Court finds that the Settling Defendants are entitled to contribution

protection pursuant to the California Code of Civil Procedure § § 877 and 877.6,

and any other applicable provision of federal or state law, whether by statute or

common law.

31. The Parties intend the broadest possible protection from contribution

actions provided by law for "matters addressed" in this Consent Decree.

32. Each Settling Defendant shall, with respect to any suit or claim

brought by it for matters related to this Consent Decree after the date the Consent

Decree is lodged with the Court, notify EPA and DOJ in writing no later than sixty

(60) days prior to the initiation of such suit or claim. Each Settling Defendant also

shall, with respect to any suit or claim brought against it for matters related to this

Consent Decree, notify EPA and DOJ in writing within ten (10) days after service

of the complaint or claim upon it. In addition, each Settling Defendant shall notify

EPA and DOJ within ten (10) days after service or receipt of any motion for

CONSENT DECREE

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summary judgment, and within ten (10) days after receipt of any order from a coin

setting a case for trial, for matters related to this Consent Decree.

33. In any subsequent administrative or judicial proceeding initiated by

the United States for injunctive relief, recovery of response costs, or other relief

relating to the B.F. Goodrich Site, Settling Defendants shall not assert, and may nc

maintain, any defense or claim based upon the principles of waiver, res judicata,

collateral estoppel, issue preclusion, claim-splitting, or other defenses based upon

any contention that the claims raised by the United States in the subsequent

proceeding were or should have been brought in the instant case; provided,

however, that nothing in this Paragraph affects the enforceability of the Covenants

by Plaintiffs set forth in Section VIII (Covenants by Plaintiffs).

XII. ACCESS

34. For any part of the B.F. Goodrich Site that is owned or controlled by

any of Settling Defendants: such Settling Defendants) shall, commencing on the

date of lodging of the Consent Decree, provide the United States and their

representatives, contractors, and subcontractors, with access at reasonable times to

the B.F. Goodrich Site, or such other real property, to conduct any activity

regarding the B.F. Goodrich Site or Consent Decree including, but not limited to,

~ the following activities:

~ States;

a. verifying any data or information submitted to the United

b. conducting investigations regarding contamination at or near

~ the B.F. Goodrich Site;

c. obtaining samples;

d. assessing the need for, planning, or implementing additional

response actions at or near the B.F. Goodrich Site;

CONSENT DECREE

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e. assessing implementation of quality assurance and quality

control practices;

f. implementing the B.F. Goodrich Site work; and

g. inspecting and copying records, operating logs, contracts, or

other documents maintained or generated by Settling Defendants or their agents.

XIII. CERTIFICATION

35. By signing this Consent Decree the Settling Defendants hereby

severally certify that they have as of February 29, 2012, produced in the

Consolidated Federal Action all non-identical and non-privileged copies of

records, reports, or information in their possession or control (if any) that relate in

any manner to response actions taken at the B.F. Goodrich Site or the liability of

any person under CERCLA with respect to the B.F. Goodrich Site. Except for

those documents that have been produced in the Consolidated Federal Action as

described in the preceding sentence, until ten (10) years after the entry of this

Consent Decree, each Settling Defendant shall preserve and retain all non-identica

copies of records, reports, or information (hereinafter referred to as "Records")

now in its possession or control, or that come into its possession or control, that

relate in any manner to response actions taken at the B.F. Goodrich Site, RABSP

Site, or the liability of any person under CERCLA with respect to the B.F.

Goodrich Site, or RABSP Site regardless of any corporate retention policy to the

contrary.

36. After the conclusion of the document retention period in the precedir

Paragraph, each Settling Defendant shall notify EPA and DOJ and the Local

Government Entities at least ninety (90) days prior to the destruction of any such

Records, and, upon request by EPA or DOJ, each Settling Defendant shall deliver

any such Records to EPA. Each Settling Defendant may assert that certain

CONSENT DECREE

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Records are privileged under the attorney-client privilege or any other privilege

recognized by federal law. If a Settling Defendant asserts such a privilege in lieu

of providing Records, it shall provide Plaintiffs with the following: (a) the title of

the Record; (b) the date of the Record; (c) the name, title, affiliation (e.g., company

or firm), and address of the author of the Record; (d) the name and title of each

addressee and recipient; (e) a description of the subject of the Record; and (~ the

privilege asserted. If a claim of privilege applies only to a portion of a Record, the

Record shall be provided to the United States in redacted form to mask the

privileged portion only. Such Settling Defendant shall retain all Records that it

claims to be privileged until the United States has had a reasonable opportunity to

dispute the privilege claim and any such dispute has been resolved in such Settling

Defendant's favor. However, no Records created or generated pursuant to the

requirements of this or any other settlement with EPA pertaining to the RABSP

Site shall be withheld from the United States on the grounds that they are

privileged or confidential.

37. Pyro Spectaculars, Inc. certifies that, to the best of its knowledge and

belief, after thorough inquiry, it has:

a. not altered, mutilated, discarded, destroyed or otherwise

disposed of any Records (other than identical copies) relating to its potential

liability regarding the B.F. Goodrich Site since the earlier of notification of

potential liability by the United States or the State or the filing of suit against it

regarding the B.F. Goodrich Site, and that it has fully complied with any and all

EPA requests for information regarding the B.F. Goodrich Site and such Settling

Defendant's financial circumstances, including but not limited to insurance and

indemnity information, pursuant to Sections 104(e) and 122(e) of CERCLA, 42

U.S.C. §§ 9604(e) and 9622(e), and Section 3007 of RCRA, 42 U.S.C. § 6927;

b. submitted to EPA financial information that fairly, accurately,

CONSENT DECREE

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and materially sets forth its financial circumstances, and that those circumstances

have not materially changed between the time the financial information was

submitted to EPA and the time such Settling Defendant executes this Consent

Decree; and

c. fully disclosed any information regarding the existence of any

insurance policies or indemnity agreements that may cover claims relating to

cleanup of the B. F. Goodrich Site and/or other locations in the RABSP Site, and

submitted to EPA and the Local Governmental Entities upon request such

insurance policies, indemnity agreements, and information.

38. Astro certifies that, to the best of its knowledge and belief, after

thorough inquiry, it has fully disclosed any information regarding the existence of

any insurance policies that may cover claims relating to cleanup of the B.F.

Goodrich Site and/or other locations in the RABSP Site, and submitted to EPA

and/or the Local Governmental Entities upon request such insurance policies and

information.

XIV. NOTICES AND SUBMISSIONS

39. Whenever, under the terms of this Consent Decree, notice is required

to be given or a document is required to be sent by one party to another, it shall be

directed to the individuals at the addresses specified below, unless those

individuals or their successors give notice of a change to the other Parties in

writing. Written notice as specified in this Section shall constitute complete

satisfaction of any written notice requirement of the Consent Decree with respect

to EPA, DOJ, each of the Local Government Entities and County Related Parties,

and each Settling Defendant, respectively.

CONSENT DECREE

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As to DOJ:

Chief, Environmental Enforcement SectionEnvironment and Natural Resources DivisionU.S. Department of JusticeP.O. Box 7611Washington, D.C. 20044-7611Re: DJ # 90-11-2-09952

A~ ~,. FDA.

Remedial Project Manager, B.F. Goodrich SiteAttn: Wayne PraskinsU.S. Environmental Protection Agency, Region IX75 Hawthorne St.San Francisco, California 94105

As to the Countv of San Bernardino:

County of San Bernardino County Counsel385 North Arrowhead Avenue, 4th FloorSan Bernardino, California 92415-0140

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Galla her &Gallagher, P.C:1925 ~entury Park East, Suite 950Los Angeles, California 90067

~ As to Colton:

City ManagerAttn: Rod FosterCity of Colton650 North La Cadena Dr.Colton, California 92324

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City AttorneyAttn: Dean DerlethBest Best &Krieger LLP3500 Porsche Way, Suite 200Ontario, California 91764

CONSENT DECREE

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II e~ ~,, u:~i~~.

City Attorney for City of RialtoAttn: Jimmy Gutierrez12616 Central AvenueChino, California 91710

As to PSI and Astro:

Gary BrownGeneral CounselPyro Spectaculars, Inc.P.O. Box 2329Rialto, California 92377

,~~I

Brian L. Za on, Esq.Hunsucker ~oodstein3717 Mt. Diablo Boulevard, Suite 200Lafayette, California 94549

as O. Peters, The 1996 Thomas,rust, and Stonehurst Site LLC:

John E. Van Vlear, EsqVoss, Cook & Thel LLP895 Dove Street, Suite 450Newport Beach, California 92660

As to Trojan Fireworks Company:

Steven J. Renshaw, Esq. LL.MRenshaw & Associates, A Professional Law Corporation5700 Ralston St.Ventura, California 93003

As to Robertson's Readv Mix, Inc.:

Rob BinamRobertson's Ready Mix200 South Main StreetCorona, California 92882

CONSENT DECREE

een S. Peters

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As to the Schulz Parties:

John Callagyc/o Asage Financial LLC1910 OI~ympic Blvd., Suite 330Walnut Creek, California 90017

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Elizabeth Rodri guez~ Linda Frederiksen; Edward Stout; Mary Callagy; StephenCalagy ;Jeanine Elizie; and, Michelle Ferrisc/o William W. Funderburk, Jr.Castellon & Funderburk LLP811 Wilshire Boulevard, Suite 1025Los Angeles, California 90017

As to the Zambelli Parties:

David Acker, Esq.For Zambelli Fireworks Manufacturing Company, Inc.25 North Mill StreetFirst Merit Plaza, Suite 500New Castle, Pennsylvania 16101

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Jad Davis, EsqKutak Rock LLP5 Park Plaza, Suite 1500Irvine, California 92614

XV. RETENTION OF JURISDICTION

40. This Court shall retain jurisdiction over this matter for the purpose of

interpreting and enforcing the terms of this Consent Decree.

XVI. INTEGRATION/APPENDICES

41. This Consent Decree and its appendices constitute the final, complete

and exclusive agreement and understanding between the Parties with respect to the

settlement embodied in this Consent Decree. The Parties acknowledge that there

are no representations, agreements, or understandings relating to the settlement

other than those expressly contained in this Consent Decree. The following

appendices are attached to and incorporated into this Consent Decree:

CONSENT DECREE

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"Appendix A" is the map of the RABSP, including the 160-Acre Area, the

Stonehurst Property, and the County Property;

"Appendix B" is a list of the insurance documents submitted to EPA by

Astro;

"Appendix C" is a list of the financial documents submitted to EPA by Pyro

Spectaculars, Inc.; and

"Appendix D" is a list of the insurance documents submitted to EPA by Pyro

Spectaculars, Inc.

XVII. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT

42. This Consent Decree shall be lodged with the Court for a period of no

less than thirty (30) days for public notice and comment. The United States

reserves the right to withdraw or withhold its consent if the comments regarding

the Consent Decree disclose facts or considerations that indicate that this Consent

Decree is inappropriate, improper, or inadequate. Settling Defendants consent to

the entry of this Consent Decree without further notice.

43. If for any reason this Court's entry of the Consent Decree is reversed

on appeal, in whole or material part, this Consent Decree is voidable at the sole

discretion of any Party and the terms of the Consent Decree may not be used as

evidence in any litigation between the Parties.

XVIII. TERMINATION

44. This Consent Decree shall be terminated when the United States and

the Local Government Entities determine that Settling Defendants have

satisfactorily completed performance of their obligations required by this Consent

Decree. Upon such termination, the parties shall file with the Court an appropriate

stipulation reciting that the requirements of the Consent Decree have been met.

Termination of this Consent Decree shall not affect any remaining obligations

CONSENT DECREE

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I under this Consent Decree including, but not limited to, those obligations descri~

in Section VIII (Covenants by Plaintiffs), Section IX (Reservation of Rights by

Plaintiffs), Section X (Covenants by Settling Defendants), Section XI (Effect of

Settlement/Contribution), Section XII (Access), and Section XIII (Certification).

XIX. FINAL JUDGMENT

45. The United States, the Local Government Entities, the County Relatec

'arties, and Settling Defendants agree, and this Court by entering this Consent

decree finds, that this Consent Decree has been negotiated by the Parties in good

aith, that settlement of this matter will avoid prolonged and complicated litigation

Between the Parties, and that this Consent Decree is fair, reasonable, and in the

>ublic interest.

46. The Court finds that there is no just reason for delay of entry of this

:onsent Decree, and therefore enters this judgment as a final judgment under Fed.

~. Civ. P. 54 and 58.

SO ORDERED THIS DAY OF , 2012.

HONORABLE PHILIP S. GUTIERREZ

United States District Judge

CONSENT DECREE

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FOR THE UNITED STATES OF AMERICA:

Dated: _1~/~-

Dated: (~ ~~ y-

:~

ACIA S. MORENOA sistant Attorney General

Environment and Natural ResourcesDivision

United States Department of Justice

By:BRADLEY R. O RIEN

Senior AttorneyUnited States Department of Justice

COItiS~;N"I' U~CREE

-39 -I


t FOR TF-~E LTIITED STf1TLS FNVIRO~NMENTAL PR~TEC;T~OI'~1 1CrENCY:

3

45 , '' .~

6 Dated: B ~-'~. ~ ~~~4

~ MANE DIAMOND

Director, Superfund Division, Kegion IX

8 U.S. Environmental Protection Agency

75 Hawthorne St.

t t~San Francisco, CA 94I05

tl

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73

14 ~,"Dated ~'~'~ By: -~'t

~ ~ SA~tAH MU LEFt

t 6 Assistant .Regional Counsel

~ ~ U.S. Envii~anmEntal Protection Agency-

Tte~i on I~

~ g 75 Hawthorne St.

19 San. Francisco, CA 94 t (?5

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'-~ CONSENT DECREE

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FOR THE CITY OF COLTON:

Dated: ~ ~ " ~~~~ By:

Dated: ~ ~ • ~' ~ z C

CITY MANAGER

~ TGENE TANAKADANIELLE G. SAKAI

Best Best &Krieger LLP

CONSENT DECREE

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FOR THE CITY OF RIALTO:

Dated: ~~' ~ ~/~ By:

f~~/~c~?

CONSENT DECREE

~.Z' ~ ~l'f

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1 ~ ~ FOR PYKO SPECTACULARS, INC.:

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~ Dated: ~~ l ~ Z By: _

g B RI

9 Ilunsucker Goodstein

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~g ~ ~ CONSEN"I' DECRrIi

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1 FOR ASTRO PYROTECHNICS, INC:

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~ Dated: ~'~ '~ ~?-~~ By:

g BRIAN L. ZA ON

Hunsucker Goodstein9

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28 I I CONSENT DEGREE

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FUR THOMAS O. PETERS:

Dated: ~—C ~. (G g ~ ~i.~Y~HN F. VAN VI,EAR

Voss, Cook & Thel LLP

CUNSEN"f DECREE

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F4R THE 1996 THOMAS O. PETERS AND KATHLEEN S. PETERS

REVOCABLE TRUST:

Dated:~f. j0, ZOI Z By• __ ~,,, (/~-~JOHN E. VAN VLEARVoss, Cook & Thel LLP

CONSENT DECREE

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FOR ST~NEHURST SITE LLC:

l ~l~ zO~ Z By: - .~'h-~Iaated: ~-t ~~.

OHN E. VAN VLEAR

Voss, Cook Bc Thel LLP

CONSENT' DI:CRF,E

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FOR TROJAN FIREWORKS COMPANY:

Dated: ~ By:STEVE J. RENSHAW

Renshaw & Associates

CONSENT DECREE

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A endix App

CONSENT DECREE

- 53


APPENDIX A

~Y - .r._ •

,. ~ ~ ~ v 5.T'

~ x~. ~ y., ,.i ri >. ~ ~~ , i

,or c -----___ -.5~' } .

',-w -1 .+

~ •r,. ~ ~ Jam. .~ ! '~ , -=r

_ •.L:• -~~._ -- ~~ t ' ?? _ _ :•n•,' _tip ' ._

w ~, i~ - ff9Q t -~

' f yf..r - ~, -.

- - - - _ . ;'" ~ 160-Acre Area _ _ t -= ~ i "~-•;yctt~, < ;

~-, ~ti i Ri ~~ ~~., ~T P,a.enc~~ae

.dA u Y ' :~'~.'

,.s

..,

I .:-s_ .

-vy~ 'ice ~F ~- ~ _ -S.

f T' ~ ; a

_ - - - - - lCounty Property -,:,. I ,~ ; -~ .~u ....... .M

;,, . ._ ,. a ^_ ..

~ ~ •~

~ •; _ __ •;~~•~• Stonehurst Property - - ~ •;

-- • Yt. '3~r r~• ~ -_ , ~ ~ ... ~ G!i th v ' Welly

~'' #22 '~

P- ~ ,.. ~..,f.. vylYetl .y

':V: ~'_ _

i,~ -.r I• •'~ ':S~~b.;lefiOn _

iL,~.....~.~~~

LEGEND ~ N

" " ~ " West Side Area

"~~ "'' Rialto Ammunition Backup Storage Point ("RABSP")

NOT TO SCALE

Consent Decree - 54 -

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A endix Bpp

CONSENT DECREE

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APPENDIX B

1. Royale Belge, CGL RBG003538, 3/1/1979-12/1/19792. Royale Belge, CGL RBG003599, 12/1/1979-12/1/19803. Royale Belge, CGL RBG003673, 12/1/1980-12/1/19814. Royale Belge, CGL RBG003740, 12/1/1981-12/1/19825. Royale Belge, CGL RBG003814, 12/1/1982-12/1/19846. Royale Belge, CGL RBG004081, 12/1/1984-12/1/19857. Pacific Employers, XCC 002106, 12/1/1980-12/1/19818. Pacific Employers, XCC 002111, 12/1/1981-12/1/19829. Pacific Employers, XCC 002112, 12/1/1982-12/1/198310. Pacific Employers, XCC 002116, 12/1/1983-12/1/1985

CONSENT DECREE

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A endix Cpp

CONSENT DECREE

-57~


APPENDIX C

Letters from Brian L. Zagon to Michele Benson, dated June 8, 2008, November 7, 2011

Letters from Brian L. Zagon to Kate Taylor, dated June 11, 2008, August 20, 2008,December 23, 2008, May 4, 2009, April 15, 2010, June 1, 2010

IRS Form 1120, U.S. Corporation Income Tax Returns for 2002 (for fiscal year endingOctober 31, 2003) through 2009 (for fiscal year ending October 31, 2010)

Pyro Spectaculars, Inc. Financial Statements for years ending November 1, 2002 throughOctober 31, 2007

Pyro Spectaculars, Inc. Financial Statements for month ending January 31, 2008 throughOctober 31, 2009

Pyro Spectaculars, Inc. Financial Statements for month ending January 31, 2009Pyro Spectaculars, Inc. Financial Statements for fiscal years ending October 31, 2009 and

October 31, 2010Pyro Spectaculars Industries Inc. Financial Statements for year ending October 31, 2008Email from Brian L. Zagon to Michele Benson and Deborah Gitin, dated November 16, 2011,

with attached Pyro Spectaculars, Inc. 7 Yeax Summary of Historic Reinveshnent of Cash

Flow in Depreciable PropertyEPA Financial Statement for Businesses completed by Pyro Spectaculars, Inc. and signed

6/8/2008Security Bank of California business checking account, statements dated 01/31/07 through

12/31/07Bank of America checking account, monthly statements ending O1/31/07 through 12/31/07Pyro Spectaculars, Inc. 7 Year Summary of Historic Reinvestment of CashPyro Spectaculars, Inc. 2009 and 2010 Confidential Business ForecastBusiness Loan Documents: Business Loan Agreement, Commercial

Guaranty, Commercial Security Agreement, Promissory NoteCopies of certain Security Bank of California checks with descriptionsSecurity Bank of California Change in Terms Agreement (for revolving credit line)Security Bank of California Corporate Resolution to Borrow/Grant Collateral

Security Bank of California Disbursement Request and AuthorizationRental agreements: 3196 N. Locust, Rialto, California; March Air Force Base; McClellan

Air Force Base; San Diego; Madera

CONSENT DECREE- 58 -


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CONSENT DECREE

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APPENDIX D

1. Royal Belge Ins. Co., CGL RBG 00 35 85, 10/15/79 - 04/01/80

2. Northbrook Excess and Surplus Ins., CGL 22-3087, 04/01/80 - 09/30/81

3. Illinois Employers of Wausau, CGL GA 14 631, 8/22/81 - 9/30/82

4. Transcontinental, CGL CCP 00 839 18 31, 09/30/82 - 09/30/83

5. Industrial Underwriters, CGL JP 867 9073, 10/01/83 - 10/01/84

6. Balboa Ins. Co., CGL 84B2582, 10/01/84 - 11/01/85

7. California Union Ins. Co., Umbrella ZCU 00 09 47, 10/15/79 - 10/15/80

8. California Union Ins. Co., Umbrella ZCU 00 14 O5, 10/15/80-09/30/81

9. Transport Indemnity, Umbrella TUL675353, 09/30/81 - 10/01/83

10. Transport Indemnity, Umbrella TUL675446, 09/30/83 - 09/30/84

11. Transcontinental, Upper Level Excess RDX 282 04 65, 09/30/82 - 09/30/83

12. Integrity Ins. Co., Excess XL208938, 10/12/84 - 10/12/85

CONSENT DECREE

~:~i~


Case 5:09-cv-01864-PSG-SS Document 1765-1 Filed 10/10/12 ...CASE NO. ED CV 09-01864 PSG (SSx)...

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Transcript of Case 5:09-cv-01864-PSG-SS Document 1765-1 Filed 10/10/12 ...CASE NO. ED CV 09-01864 PSG (SSx)...